EMPLOYEE STRIKES

Photo by: Zoe

An employee strike is an episode wherein a company's work force
engages in a work stoppage in an effort to elicit changes from its
employer in such areas as wages, benefits, job security, and management
practices. Strikes are typically engineered by labor unions, whose
memberships accounted for approximately 15 percent of all employees in the
United States in the late 1990s (about 10 percent of all private sector
employees). Union strikes are usually associated with large companies, but
they can be implemented against smaller employers as well. Given the
enormous financial stakes of such actions, small business owners need to
be prepared in the event that an employee strike is called against them.

TYPES OF STRIKES

The National Labor Relations Board (NLRB) provides legal protections for
two kinds of strikes, economic strikes and unfair labor practices strikes.
The former is a strike that is undertaken by workers in order to garner
improvements in their wages, benefits, hours, or working conditions. An
unfair labor practices strike is an action that has far more serious legal
implications for small business owners. This kind of strike occurs in
instances where the employer allegedly violates NLRA rules that protect
workers during collective bargaining. "Typical violations that
prompt an unfair labor practices strike include refusing to pay benefits
when they're due, discharging an employee for engaging in union
activities, and refusing to bargain in good faith," reported J.D.
Thorne in
Small Business Reports.
"An unfair labor practices strike not only threatens a loss of
business, but also requires that you return picketing workers to their
jobs when the strike ends. Therefore, you must fire loyal replacement
workers who crossed the picket line to work—and helped keep your
business afloat." Businesses that do not do so are liable for back
pay starting on the date that striking workers made their unconditional
offer to return to work.

Given the added risks associated with an unfair labor practices strike,
then, Thorne contended that "the most important aspect of managing
an economic strike—the most common type—is to prevent it
from becoming an unfair labor practices strike." Thorne noted that
employer actions that could trigger this transformation include blatant
ones, such as discharging an employee for engaging in his or her right to
strike or withholding benefits (earned vacation time, pension-plan
eligibility, etc.) as well as more subtle ones that nonetheless violate
the National Labor Relations Act. The issue of communications with union
members, for instance, is rife with rules that can ensnare the unknowing
small business owner. These communication rules apply both to the
pre-strike and strike periods. Following are specific guidelines that
small businesses should adhere to in negotiations:

Continue to bargain in good faith throughout the process. "Both
sides have a continuing responsibility to engage in good faith
collective bargaining," wrote Thorne, "which means that
you must meet with the union with the intent of reaching an agreement
about the workers' demands. Failure to do so also could convert
the nature of a strike.

Provide unions with all information to which they are legally entitled.
Under U.S. labor law, unions can request information about
management's plans regarding various operational aspects of the
business during the strike. For example, the union can ask for
information about where the business plans to get replacement workers
and the wages that they will be paid.

Know management rights. Many legal protections are in place to protect
workers from unfair management practices, but business owners have
rights, too. Thorne noted, for instance, that businesses can discuss and
clarify with striking employees how their proposal differs from that of
the union leadership, and they can "ask employees to vote to
accept your final offer when it's presented for
ratification." Many strike situations also give them the option
of utilizing replacement workers without penalty. Nonetheless,
businesses should be aware that there are many legal "do's
and don'ts" associated with management-union interactions
during collective bargaining and strike periods, and they should make
sure that they have adequate legal representation to assist them in this
area.

MANAGING A STRIKE

The beginning of an employee strike is almost always a difficult period
for small business owners. The adversarial nature of such actions can be
jarring for company leaders who are unfamiliar with strikes, and the
walk-out itself can threaten small-and midsized business owners with
devastating economic
consequences (large companies can be hurt by strikes, too, of course, but
their very existence is not usually jeopardized). Given this reality,
small business owners and their management teams must take steps to ensure
that their companies will be able to continue their operations during the
strike. As Brenda Paik Sunoo wrote in
Personnel Journal,
"a strike will inevitably pose challenges in many areas: managing
contingent workers; setting up communication between management and all
employees; maintaining customer service; establishing interim policies
regarding benefits, overtime, vacations, and sick leave; and bolstering
non-striking employees' morale. Clearly, those that prepare well in
advance will suffer the least trauma during and after a labor
dispute."

Indeed, business experts universally agree that advance planning is key to
managing a strike. They note that few companies can claim that they were
caught flat-footed by a work stoppage. Most strikes occur when labor
contracts expire, and even those that do not take place on such a specific
date typically provide management with plenty of warning signs. Businesses
that prepare for contract expirations and other potential strike periods
by drawing up detailed contingency plans in advance will be much better
equipped to weather a strike than will those firms that wait until the
last minute. In recognition of this reality,
Risk Management
noted in 1998 that increasing numbers of companies have created
management teams—sometimes called strike contingency planning teams
(SCPTs)—to address potential strike issues.

Advance preparation efforts should cover a broad spectrum of operational
areas. For example, businesses should have a plan in place to put together
a contingent work force, whether comprised of replacements, non-striking
employees (often supervisory personnel), or a combination of the two. A
company that maintains information on recent job applicants, for example,
may find itself better positioned to form a contingent work force than a
firm that neglects to do so. Contingent work forces will also need
training on a variety of issues, from duties to customer relations to
legal matters (non-striking personnel already employed by the company may
well need this training as well, since they will in many cases be
undertaking unfamiliar tasks and interacting with customers and suppliers
with whom they may not be familiar. Appropriate training programs should
be in place well before a strike, not cobbled together after a strike
actually occurs. Employers will also have to prepare interim policies
governing various human resource issues for both striking and non-striking
workers.

Companies facing strike actions should also make sure that their customers
and suppliers are notified at appropriate times of that possibility. If
your company suddenly announces to a major customer that your facility has
been hit with a strike without providing that customer without any prior
warning, you are likely to lose that customer for good, even after the
labor dispute has been resolved. Businesses facing strikes should also
make preparations for alternative service to valued clients and customers.

Another key to successful strike management, say labor experts, is for
management to maintain a professional stance throughout. Many labor
disputes disintegrate into intensely negative clashes, with repercussions
that are felt long after the strike itself has been settled. Small
business owners should do their best to prevent negotiations from becoming
acrimonious. Owners who are capable of empathy with their striking
employees' concerns about job security and economic wellbeing will
be better able to manage this than will those who automatically dismiss
all work stoppages as solely an outgrowth of union greed.

Finally, business owners should plan ahead to make sure that they have
adequate security if a strike takes place. "Strikes, by their very
nature, are adversarial," stated Sunoo. "They often are
accompanied by disruptions in service and product delivery, and sometimes
even violence." Savvy businesses will contact local legal and
governmental authorities in advance to discuss issues such as picket
lines, responses to disturbances, etc. In addition, businesses at risk of
being the target of a work stoppage will often need to hire security
forces to monitor the premises and protect their contingent work force.
The role of security is twofold, said one security expert in an interview
with
Personnel Journal:
1) providing managers and non-striking employees with assurances that
they can go to work without being injured, and 2) gathering evidence of
any strike-related misconduct on the part of strikers for later use in
legal proceedings.

Companies seeking security service have a number of options from which to
choose, including their own personnel, local off-duty law enforcement
personnel, and local security firms that provide security guards. Experts
recommend that companies seeking security help look to firms with previous
strike experience and avoid local security firms unless they can get
assurances that none of their guards have any meaningful social or
familial relationship to any of the strikers.

FURTHER READING:

Caponigro, Jeffrey R.
The Crisis Counselor: The Executive's Guide to Avoiding,
Managing, and Thriving on Crises that Occur in all Businesses.
Barker Business, 1999.